“Security of Tenure: Legal and Judicial Aspects” Research Paper prepared for the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living and on the right to non-discrimination in this context, Raquel Rolnik, to inform her Study on Security of Tenure By Bret Thiele,1 Global Initiative for Economic, Social and Cultural Rights 1 This research paper was prepared for an expert group meeting convened by the Special Rapporteur on 22-23 October 2012, on security of tenure. The Special Rapporteur thanks Mr Bret Thiele for his contribution. Summary National laws and policies protect various elements of security of tenure, although rarely in a comprehensive manner. Security of tenure is generally implicit in many of these laws and policies, with the notable exception of laws dealing with eviction protections and regularization, which often have explicit references to security of tenure. These protections can be found in both civil and common law jurisdictions and some have been informed by international norms to various degrees, again most notably in the context of eviction protection. Forced evictions, however, continue to occur in all parts of the world and what security of tenure exists is all too often correlated with a property rights regime or socio-economic status – thus leaving marginalized individuals, groups and community most vulnerable to violations of their tenure status. Indeed, even within the same type of tenure, the degree of security of tenure often correlates to economic status. Consequently, marginalized groups are often at a disadvantage both between and amongst types of tenure. Many States have made efforts to protect security of tenure for marginalized individuals or groups. For example, Scotland has adopted the Homelessness etc. (Scotland) Act which is designed to end homelessness, and thus provides an example of the creative use of law and the efficacy of making a concerted effort to end one of the most egregious results of lack of security of tenure. The Act demonstrates how state intervention can assist persons with gaining increasingly secure tenure over time. International law has had an impact in informing national laws on security of tenure, particularly in the area of eviction protection. Laws and courts have both been informed by the international prohibition on forced eviction, including the requirement of providing the minimum degree of security of tenure to prevent forced evictions. This reliance on international norms has often resulted in increased security of tenure and better outcomes for those living in otherwise tenuous tenure arrangements. In South Africa, for instance, courts have relied on international law to inform national constitutional and legislative protections. The results are that national law has proven to provide greater protections of security of tenure. South Africa also provides examples of dealing with social rights in conflict with property rights, including the constitutionally protected right to adequate housing‘s potential conflict with the constitutionally protected right to property. Jurisprudence from South Africa has shown how the human right to adequate housing, as an international human right, should be paramount and protected while still protecting property rights. With the Prevention of Illegal Evictions and Unlawful Occupation of Land Act, South Africa has also adopted legislation aimed at preventing illegal eviction. Kenya also is moving towards legislation, now in the form of the Evictions and Resettlement Procedures Bill, that protects against forced eviction, thus creating some degree of security of tenure by articulating processes by which evictions, when necessary, are to occur. Meanwhile, the new Constitution of Kenya has been successfully used, and in particular the express right to adequate housing, to prevent forced eviction and provide a minimal guarantee of security of tenure. While an improvement over the status quo ante, however, such anti-eviction laws as in South Africa and Kenya still often leave space for evictions unlawful under international law to occur by laying out procedures by which to evict. There are other examples of the efficacy of reliance on international law as a means to model or interpret national laws, policies and practices. For instance, the Urban 2 Development and Housing Act from the Philippines was modelled after international law. It has, however, and in contrast to the experiences in South Africa and Kenya, failed to be implemented and interpreted consistently with those international obligations. As a result forced evictions have all too often occurred in the Philippines that contravene that country‘s international human rights obligations. India provides an example of the benefit of justiciable rights complemented by the interpretive use of social norms. The Supreme Court of India has relied on justiciable rights and social directives to provide degrees of security of tenure to marginalized groups, including pavement dwellers. More recently, the courts in India have also turned to international human rights standards and norms, including the International Covenant on Economic, Social and Cultural Rights and the United Nations Basic Guidelines and Principles on Development-Based Evictions and Displacement. Every regional human rights system has, in one way or another, dealt with the issue of security of tenure in the context of prohibiting evictions. The jurisprudence from these regional mechanisms demonstrates the efficacy of international legal protections in the absence of national law, policy or practice or lack of accessible and effective remedies to enforce security of tenure at the national level. Beyond prevention of forced eviction, national laws also address the provision of security of tenure in the context of regularizing informal land systems. For instance, the National Land Policy of Kenya includes provision of security of tenure as a key principle of its aims to facilitate the regularization of existing squatter settlements found on public and community land for purposes of upgrading or development. It also requires a framework to facilitate the negotiation between private owners and squatters in cases of squatter settlements found on private land. In the context of post-apartheid South Africa, the Extension of Security of Tenure Act demonstrates an attempt at remedying situations of large segments of the population‘s lack of security of tenure, particularly around land reform and past exclusionary and discriminatory laws and practices. The Act seeks to regularize tenure arrangements of disadvantaged groups by strengthening tenure over existing land and housing while reconciling potential completing property claims. The City Statute from Brazil innovatively uses prescription, or usufruct, to provide security of tenure to marginalized groups, in particular the urban poor residing in informal settlements. The City Statute relies on the notion of valuing the social function of the urban area and of property and uses the concept of usufruct, similar to adverse possession in common law systems, to support State intervention and provision of housing with security of tenure. The City Statute applies to both individual occupancy and collective occupancy of urban land. Kenya has also made strides in providing security of tenure, including recognition of communal tenure for groups that culturally consider residential areas to be a collective possession. Grounded in the Constitution, communal tenure is given specificity through Kenya‘s National Land Policy and implemented through a recently adopted innovative Community Land Rights Recognition Model. Finally, the experience in the United States demonstrates that even relatively strong, freehold property rights rooted in a strong property-centric system fail to provide absolute security of tenure. There, despite a common tenure regime, the level of security of tenure often depends on one‘s socio-economic status, consequently leaving marginalized groups under-protected vis-à-vis other groups. Furthermore, the notion of property rights can often be detrimental to security of tenure, as conflicts between owners of land or housing and occupiers of land or housing demonstrate. 3 This illustrative examination of laws exposes gaps in and raises questions about the current state of security of tenure as it is articulated in the current human rights framework. The identification of these gaps can help inform the development of guidelines on security of tenure at the international level that would benefit policy-makers at the national level. One key gap is the lack of a concise, agreed upon, definition of security of tenure at the international level besides the minimum degree necessary to prevent forced eviction. Guidelines should take into account that differing social, historic, economic, and cultural contexts may require differing types of security of tenure while at the same time ensuring universal and meaningful protection of security of tenure for all. Another gap is related to addressing non-discrimination. Differing forms of security of tenure across the continuum of tenure types provide varying degrees of security, with this variance often correlated to property or socio-economic status. Guidelines on security of tenure should address this issue of non-discrimination on account of property or other status. Specifically, how can States ensure that all members of society, regardless of property or socio-economic status,